Prosecuting presidents: In Latin America, it hasn't buoyed public trust

Prosecuting or jailing former political leaders in Latin America is increasingly mainstream, with recent cases ranging from presidents charged or convicted of crimes in Peru to Argentina to Brazil.

Despite the implication that even the most powerful are not above the law, the legal cases that have mounted in the region over the past two decades have not resulted in a corresponding rise in citizen confidence in judicial systems.

Now, with the world’s attention focused on the historic indictment of a former president of the United States, Latin America’s track record emerges as an example of just how complex the concept of justice can be.

Successes in holding the powerful to account are butting up against the politicization of the legal system here, while high rates of impunity for crimes that most frequently affect average citizens undermine judicial credibility. If rebuilding confidence in the justice system in Latin America is possible, legal experts say, it will require stronger judicial independence as well as public accountability. 

“Trust can’t be recuperated just by opening more legal investigations,” says Clara Lucarella, a lawyer with the Civil Association for Equality and Justice in Buenos Aires. What matters is “how these proceedings are carried out, and whether the public has access to information to know what’s going on,” she says.

“The judiciary needs structural reform that can’t be enacted by any one government. ... These have to be questions that are agreed upon and debated that involve citizens in thinking about what type of judiciary we want for society.”

“Accountability agents”

The fall of Latin America’s dictatorships in the late 1970s and ’80s brought about the judicial reforms necessary for democracy to take root. Truth and reconciliation commissions in places like Argentina, Chile, and Guatemala allowed fledgling democracies to build credibility and lay the groundwork for journalists and civil society to operate with significant freedom. International investment in technical trainings and implementing 21st-century reforms from Mexico to Brazil amped up judicial professionalism and independence.

“The courts almost universally across Latin America started to become more independent, acting as accountability agents that were willing and able to challenge or to address corruption and enforce the political rules of the game,” says Bruce Wilson, a political scientist at the University of Central Florida.

Yet, in recent years the dividing line between judicial processes and politics have started to blur in many nations, undermining this sense of independence.

For example, months before Nicaragua’s 2021 presidential election, Daniel Ortega’s government arrested over a dozen political rivals, many under unsubstantiated treason charges. Brazilian President Luiz Inácio Lula da Silva spent 18 months in prison before his sentence was annulled, deemed by the Supreme Court to have been politically biased. Peru’s Pedro Castillo is one of seven recent presidents who were either imprisoned or investigated for corruption, and although Peruvian prosecutors have been hailed for their anti-graft probes, they’re also criticized for turning too quickly to pre-trial detention. Only one of these former Peruvian presidents has been convicted of a crime. 

The judicial system “can start to become a tool,” says Mr. Wilson. “Everyone’s corrupt if you’re trying to get them out of office.”

According to Transparency International’s Global Corruption Barometer, some 21% of Latin Americans trust their government, while 27% of Latin Americans trust their courts. Distrust can stem from one’s own experience with the justice system, says Luis Pásara, a legal scholar from Peru and senior fellow at the Due Process of Law Foundation in Washington, by email.

If petty robbery or neighborhood violence isn’t investigated professionally – or regularly – then faith in the justice system can be tarnished at the citizen level. For example, when former Peruvian President Alberto Fujimori was sentenced to prison for a series of crimes, it garnered a positive reaction – but not a lasting one, says Mr. Pásara. “The habitual experiences weigh more heavily on the citizen’s conscience.”

Latin American citizens perceive high levels of corruption among their public officials, according to the LAPOP Lab’s AmericasBarometer, with some of the highest levels of perceived wrongdoing in Peru and Brazil. And impunity is a much bigger problem in Latin America than in the U.S., Canada, or Europe, according to the 2022 Global Impunity Index. Honduras, Paraguay, and Mexico are among the countries where the fewest crimes are solved. Only 1.3% of crimes committed in Mexico are solved, according to Human Rights Watch.

When Argentine Vice President Cristina Fernández de Kirchner was found guilty of fraudulently awarding public works contracts late last year, Juan Manuel Peralta, an entrepreneur in his mid-30s in Buenos Aires, barely batted an eye. She isn’t the first – or even second or third – former president he’s seen prosecuted in his lifetime.  

“Whenever the political party changes, the new government goes after the previous administration,” he says. “What should be kept constant is justice.” 

He says he would be more likely to trust the courts if politicians in Argentina weren’t protected by immunity, which shelters former presidents who continue to serve as senators or in other public posts. 

“At most, there will be a conviction, but you are never going to see a politician in jail. That’s what makes you angry,” he says.

Populism and polarization

Each of the cases is different, but the battle of narratives that emerge reflects a theme prevalent across countries where prosecutions of politicians are frequent: Citizens aren’t sure when or whether to trust the judicial process itself.

Populist politics and polarization fuel deeply divided perspectives, revolving increasingly around loyalty to personality, while access to reliable public information about trials is limited.

“No one even believes the journalists anymore,” says Mr. Peralta.

The way judicial systems in Latin America carry out their work “reinforces and sustains a culture of secrecy ... generating a high degree of distrust and distance from the citizenry,” reads a report published earlier this year by the Regional Alliance, a network of civil organizations across Latin America.

Costa Rica and Argentina have made strides in data transparency and accessibility by making information about judicial trials available online. And 16 countries from the region have signed on to the Open Government Partnership, a global network that requires members to publish national action plans in areas of transparency, accountability, and public participation, and report on their implementation.

In the meantime, high-level political convictions continue to mean little for people like Felix Diaz, president of the Participatory Advisory Council of the Indigenous People in Argentina. 

“We don’t have access to justice, we don’t have human rights, or money to hire a lawyer,” says Mr. Diaz, as a steady flow of tourists take pictures of the Casa Rosada, Argentina’s presidential palace, their backs to the tent where he and 11 others have lived for the past three years demanding political and legal support for Indigenous communities.

“We haven’t found a reason to trust yet.”